ment Station, or, under his direction, the it is sufficient (Burnside v. Lincoln County head of the division of food inspection of the station, to make or cause to be made examinations of samples of food and drugs manufactured or on sale in this state at such time and place and to such extent as he may determine.

In the numerous decisions of this court interpreting section 51, Constitution, and applying its provisions, the following general rules appear to have been announced: First, priation of $30,000 is reached. the general manner in which the subject of the provision as to compensation for analyses an act is to be accomplished need not be ex- does not constitute a system of fees, but pressed in the title (Collins v. Henderson, 11 merely establishes a scale by which the Bush, 75; Commonwealth v. Bailey, 81 Ky. $30,000 is granted. The compensation for 395); second, stating the subject-matter of analyses and other expenses, for the paythe act, with unnecessary detail in the title, ment of which the act provides, cannot in does not render the act unconstitutional (Al- any one year exceed the $30,000 approprilen v. Hall, 14 Bush, 85); third, if all the ation for such year. It is patent from the provisions of an act relating to the same sub- evidence appearing in the record that the ject are naturally connected, and are not authorities in charge of the Experiment Sta

appropriation, and, further, that they have, | of the act had given any intimation that it ever since the act in question became effec- contained an appropriation of $30,000 to be tive, each year drawn the entire $30,000 from paid by the state annually for an indefinite the state treasury. number of years, it would at least have been We now come to the consideration of the understandingly considered and voted on. main question: Does the act conform to the But the title gave no intimation of the aprequirements of section 51, Constitution? propriation that lay concealed as far down Comparison of the contents of the body of in the body of the act as its eleventh subthe act with its title will demonstrate that, section, to reach which ten other subsections, in so far as the provisions of subsection 11 dealing with totally different matters, must are concerned, it does not do so. In other first be read. Being thus preceded and words, all of the provisions of the act, ex- hedged about by other provisions that appear cept those contained in subsection 11, are to be germane to the subject expressed in embraced and covered by the title, because the title, the appropriation contained in subthey each and all relate to and are naturally section 11, which is not even remotely reand directly connected with the subject ex-ferred to in the title or necessarily connected pressed in the title; that is, they define with the subject. therein expressed, was so what shall constitute an adulteration or misbranding of foods and chemicals, provide the means of detecting and preventing same, designate the offenses that may be committed under the act, and prescribe the penalties therefor. Subsection 11, however, attempts to bring into the act and make a part thereof various provisions which are foreign to the subject expressed in the title. These provisions relate to the making of compensation to the Experiment Station for analyses or examinations of samples of food or drugs, paying the expenses attending the procuring of such samples, the cost of clerk hire, attending grand juries and trials in prosecutions of offenders against the law, and, finally, providing an annual appropriation of $30,000 for defraying all such items of cost and expense.

disguised as to render its presence in the body of the act well-nigh undiscoverable without a reading of the entire act.

The situation here presented is one that section 51 of the Constitution was intended to prevent, and which could have been prevented by the addition to the title of the act of another sentence, indicating that the act contains an appropriation of $30,000 per annum to meet the expenses of carrying out its provisions. There can be no doubt that the act in question relates to two subjects, viz: (1) The preventing of the manufacture and sale of adulterated or misbranded foods, drugs, medicines, and liquors, and to provide penalties for so doing; (2) an appropriation from the revenues of the state of $30,000 per annum. It is equally free from doubt that only the first of these subjects is expressed in the title of the act, as the Constitution provides. It may also be remarked that the first subject to which the act relates appertains to the criminal or penal laws, and the second alone to an appropriation of the state's money.

The phraseology of the title, "An act for preventing the manufacture and sale of adulterated or misbranded foods, drugs, medicines and liquors, and providing penalties for violations thereof," does not even suggest to the average mind that the body of the act provides for the expenditure of [3] As section 46, Constitution, provides the money of the Commonwealth, required that any act or resolution for the appropriby the eleventh subsection, or an intimation ation of money or the creation of debt shall that such subsection provides for an annual not become a law unless on its final passage appropriation of $30,000. Being utterly si- it has received the votes of a majority of all lent as to the expenditures required and the the members elected to each house, it would appropriation made by this subsection, the not be wide of the mark to say that adhertitle of the act, when introduced and put ence to the requirements of section 51, upon its passage in the Legislature, could Constitution, is of the utmost importance, have conveyed to the mind of the average in order that the members of the General legislator no other meaning or information Assembly may be fully informed in voting than that its only subject was to make it upon an act carrying an appropriation, and an offense for any person to manufacture the taxpayers of the state advised, after or sell adulterated or misbranded foods, its passage, as to the meaning of its prodrugs, medicines, or liquors, and prescribe the penalties therefor. The ostensible object of the act, being the protection of the public, made it so attractive to the members of the General Assembly, and the necessity for its passage so apparent, that the mere reading of its title was well calculated to induce them to give it their support, without taking time to examine the body of the act and thereby obtain an understanding of its numerous provisions; whereas, if the title

visions.

In Ragland, etc., v. Anderson, 125 Ky. 141, 100 S. W. 865, 30 Ky. Law Rep. 1199, 128 Am. St. Rep. 242, we said:

the General Assembly by the standard of the "It is for the courts to measure the acts of Constitution, and if they are clearly and unequivocally in contravention of its terms, it be comes the duty of the judiciary to so declare. Of course, if the question as to whether or not the legislation is inimical to the Constitution be doubtful, it will always be decided in favor of the constitutionality of the law. But where the

and the remainder allowed to stand." Jones v. Thompson, 12 Bush, 394; Fuqua v. Mullen, 13 Bush, 467; Thompson_v. Commonwealth, 159 Ky. 8, 166 S. W. 623; Burton v. M. & B. Turnpike Co., 162 Ky. 787, 173 S. W. 144.

matter is plain that the Constitution has been, without affecting the otherwise valid portions, violated, then the courts cannot escape the duty then the unconstitutional part will be omitted of so declaring whenever the matter is brought to their attention. And no matter how distasteful it may be for the judiciary to review the acts of a co-ordinate branch of the government, their duty under their oath of office is imperative." Varney v. Justice, 86 Ky. 596, 6 S. W. 457, 9 Ky. Law Rep. 743; Marbury v. Madison, 1 Cranch (U. S.) 137, 2 L. Ed. 60.

In McCreary, Governor, v. Speer, 156 Ky. 783, 162 S. W. 99, we also said:

"It is true our Constitution contains no provision to the effect that all its provisions are mandatory; but we deem this immaterial for the reason that this court had held before the adoption of the present Constitution that all the provisions of a Constitution are mandatory; and the Constitution must be presumed to have been adopted with this understanding of its meaning. Since the adoption of the Constitution the court has steadily maintained the same rule." Prison Commissioners v. Spencer, 159 Ky. 255, 166 S. W. 1017..

In Burton v. M. & B. Turnpike Co., 162 Ky. 787, 173 S. W. 144, we further said:

"In Hyser v. Commonwealth, 116 Ky. 410 [76 S. W. 174, 25 Ky. Law Rep. 608], it was said: "This court has repeatedly announced, in effect, that no provision of a statute directly or indirectly relating to the subject expressed in the title, having a natural connection therewith, and not foreign to the same, should be deemed within the inhibition of section 51 of the Constitution.' This broad, liberal rule was approved in the early leading case of Phillips v. Cincinnati & Covington Bridge Co., 2 Metc. 219, and again in Collins v. Henderson, 11 Bush, 74: Hoke v. Commonwealth, 79 Ky. 567; Commonwealth v. Bailey, 81 Ky. 395; Burnside_v. Lincoln County Court, 86 Ky. 423, 6 S. W. 276; Conley v. Commonwealth, 98 Ky. 125, 32 S. W. 285, 9 Ky. Law Rep. 635; and Eastern Kentucky Coal Lands Corporation v. Commonwealth, 127 Ky. 667, 106 S. W. 260, 108 S. W. 1138, 32 Ky. Law Rep. 129, 33 Ky. Law Rep. 49. In recognizing this rule, however, this court, in Thompson v. Commonwealth, 159 Ky. 12, 166 S. W. 624, further said: 'But in no instance has this rule been extended so as to legalize legislation that departs so radically from the title of the act as do the sections here under consideration. Here the title of the act limited the scope of the legislation to the appropriation of money for the benefit of the Houses of Reform, and this limitation in the title reasonably and naturally conveyed the meaning that the body of the act was confined to the appropriation of money, and no other subject.'"

The conclusion we have reached renders unnecessary the decision of the other question urged in the brief of appellant's counsel; and as the salutary object of the act cannot fully be carried out without the appropriation made invalid by the elimination of subsection 11 thereof, it is assumed that the General Assembly will at its approaching session so amend the act as to make the needed appropriation, and at the same time allow its application to the erection of the cold storage plant and abattoir desired by appellee.

For the reasons indicated, the judgment is reversed, and cause remanded, with directions to the lower court to sustain the demurrer to the petition and dismiss the action.

JORDAN et al. v. CROMWELL et al. (Court of Appeals of Kentucky. Oct. 26, 1915.) JUDGMENT 461 EQUITABLE RELIEF

FRAUD-EVIDENCE.

Evidence in a suit to have a judgment for sale by way of partition set aside for fraud in procuring it held to show no fraud, but abandonment of an agreement for division through disinterested persons.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 892, 893, 895; Dec. Dig. 461.j Appeal from Circuit Court, Hickman County.

Suit by heirs of Nace Cromwell against F. E. Jordan. From part of the judgment defendant Jordan, appeals, and from part of it plaintiff Mattie Vaughn appeals. Reversed in part, and affirmed in part.

Joe W. Bennett, of Clinton, Robbins & Robbins, of Mayfield, and M. T. Shelbourne, of Bardwell, for appellants. J. Kelly Smith and R. B. Flatt, both of Clinton, for appellees.

[4] It is our conclusion that so much of CARROLL, J. On May 9, 1912, the appelthe act under consideration as is included lant Jordan brought a suit in equity against in subsection 11 of section 1905a is violative the heirs of Nace Cromwell, nine in number, of section 51 of the Constitution, and there- to have sold as indivisible a tract of land fore void. This conclusion does not, how-containing 34 acres. The petition set out ever, render invalid the remaining subsec- that Jordan had purchased the one-ninth intions of the act, which seem to be germane terest each of Mattie Vaughn and Charles to the subject expressed in the title, as it Cromwell in this piece of land and had obis manifest that subsection 11 can be elim-tained deeds therefor, and so these two heirs inated from the act without to any extent affecting the subject-matter of the germane parts; the rule in such case being as stated in Wiemer v. Commissioner of Sinking Fund, 124 Ky. 377, 99 S. W. 242, 30 Ky. Law Rep. 523:

were not made parties to the suit. The prayer of the petition was for a sale of the land and a division of the proceeds between the seven heirs, who each owned one-ninth, and Jordan, who owned, as he alleged, two-ninths. Charles Cromwell, who had not been made a "When a subject foreign to the title is introduced into the body of an act, if it is so separate party to the suit, came into court on his peand distinct from the remainder of the subject- tition to be made a party, and filed an anmatter of the legislation that it may be omitted swer in which he denied that he had soid his

was not inserted in the written agreement.. There were other averments showing the value of the land and that Jordan desired it to be sold in a body, that he might purchase it for a sum greatly less than its real value, as they were not able to become the purchasers.

interest to Jordan, averring that the deed | dismiss the suit he had brought and pay the made to Jordan was intended to be and costs thereof, but by mistake this provision should be treated as a mortgage to secure the payment of $20 that he owed Jordan. He further denied that the land was indivisible, and said that it could be divided without impairing the value of any interest. Mattie Vaughn also filed her petition to be made a party, which was taken as her answer, and denied that she had sold to Jordan her interest in this land, averring that so much of the deed as purported to convey this interest was a fraud and without consideration. She also said that the land was susceptible of advantageous division. These pleadings, which were made answers, were filed in October, 1912, and a few days afterwards Jordan filed separate replies to the answers, thus completing the issues, as the other heirs did not file answers, although they were summoned.

In December, 1912, Charles Cromwell and Mattie Vaughn, as well as others in their behalf, testified in the case by deposition, and other witnesses also gave their depositions in Jordan's behalf.

In May, 1913, the case was submitted, and the court adjudged that the land could not be divided; that Jordan was the owner of the one-ninth interest of Mattie Vaughn; that the deed made by Charles Cromwell to Jordan should have the effect of a mortgage to secure him in the payment of $20, and interest; that the costs of the action, including an attorney's fee, should be paid out of the proceeds of the sale of the land, which was ordered to be sold as a whole on account of its indivisibility.

In October, 1913, and before the order of sale was executed, the nine Cromwell heirs filed their petition in equity asking that the judgment rendered in May be vacated and set aside on the ground that it was procured through fraud. This petition further set up the fact that Mattie Vaughn had not sold her interest to Jordan, and that the land was susceptible of division, and, further, that the purported deed of Charles Cromwell to Jordan was, in fact, a mortgage.

The ground of fraud relied on was that some time in May, 1912, and before the suit was brought by Jordan, an agreement in writing was entered into between Jordan and the Cromwell heirs, in which it was set out that:

Jordan filed an answer in this suit, and evidence was taken on the issues made, and the court adjudged that the land was susceptible of division; that Jordan owned the interest of Mattie Vaughn therein and had a lien against the interest of Charles Cromwell to secure the payment of $20, and interest. Commissioners were appointed to divide the land, and the cost was adjudged to be paid by the parties according to their interests. From so much of the judgment as ordered the land divided, Jordan appeals, and from so much of it as adjudged that Jordan owned the interest of Mattie Vaughn, she appeals. It will be observed that the only difference between the first and the second judgment is that the first judgment directed that the land be sold and the proceeds divided, while the second judgment directs the land to be divided, and the first judgment allowed an attorney fee of $100, and the second judgment did not allow any attorney fee.

It seems to us that the first judgment is conclusive upon all the parties to this suit. There is no substantial reason shown in the suit brought to vacate the judgment why it should be set aside, nor does the evidence taken in support of this last suit furnish any reason for disturbing the former judgment. Precisely the same issues were made in the first suit that were made in the last suit, and, while it is true that all of the Cromwell heirs did not file answers in the first suit, the two answers that were filed set up distinctly the identical defense that the heirs who had been summoned in the first suit but did not answer asserted in this last suit. The only new matter at all is that in relation to the agreement between Jordan and the heirs that the land should be divided, but the first suit was filed several days after this agreement was entered into, and the fact that some of the heirs defended the first suit on the ground that the land could be divided without referring in any way to this agreement shows very clear

"We have agreed that we will have three disinterested men divide Sarilda Cromwell's dow-ly that the written agreement was abandoner, and that F. E. Jordan is to pay all costs in the suit filed yesterday. Said division is to be made Tuesday, May 7, 1912; said men to be as follows: M. B. Willey, Joe Eberhard, and Fred Scott."

It was averred that the Cromwells were ignorant colored people, and, resting in the belief that the land would be divided under the agreement, none of the heirs, except Mattie Vaughn and Charles Cromwell, gave any attention to the suit. They further said

ed by all parties. Reading between the lines, there appear certain things that would persuade us to hold that the land was susceptible of division, but we do not feel authorized on mere suspicion to vacate a judgment duly entered upon issues made by the parties.

Counsel for Mattie Vaughn points out that the original deed executed by her to Jordan shows that some fraud was practiced by

conveyance of her interest in the dower, but [ This action was taken by the fiscal court on the original deed is not in the record, and the 18th day of October, 1913. The salary or the decided weight of the evidence shows compensation to the county court clerk, for that the conveyance of this interest to his services as clerk of the fiscal court, was Jordan was in the original deed at the time fixed at the sum of $500 per year. The apit was signed and acknowledged. pellee was inducted into office on the first Monday of January, following, and thereafter the fiscal court, at a session held on the 12th day of September, 1914, undertook to change the salary or compensation of the county clerk for his services as clerk of the fiscal court by the adoption of a resolution allowing him only the sum of $100 for his services as clerk of the fiscal court for the year 1914. The appellee objected to the resolution and from it prayed an appeal to the circuit court. The case was there tried upon

We think the court erred in modifying the first judgment. Wherefore the second judgment entered is reversed on the appeal of Jordan and affirmed on the appeal of Mattie Vaughn, and on a return of the case the court will set aside the second judgment and direct the execution of the first judg

ment.

FISCAL COURT OF MERCER COUNTY v. GIBBS.

an agreed state of facts, which consisted substantially of what has been heretofore stated

(Court of Appeals of Kentucky. Oct. 27, 1915.) OFFICERS 100-COMPENSATION-ALTERA- in this opinion, as the facts of the case, and

TION DURING TERM.

Where the fiscal court, before the election of a county clerk, fixed his compensation as clerk of the fiscal court at $500 per annum, it could not, after election, reduce the compensation for any year of his term of office, since such compensation forms part of his salary as county clerk within the protection of Const. § 161, providing that the compensation of a county officer shall not be changed after his election or during his term of office, and section 235, providing that the salaries of public officers shall not be changed during the term for which

they are elected.

[Ed. Note.-For other cases, see Officers, Cent. Dig. §§ 152-157; Dec. Dig. 100.]

Appeal from Circuit Court, Mercer County. Action by H. L. Gibbs against the Fiscal Court of Mercer County. From a judgment for the plaintiff, defendant appeals. Affirmed.

upon that state of facts and the copies and orders of the fiscal court adjudged that the order appealed from, which was made on the 12th day of September, 1914, was void, for the reason that the salary of the clerk of the fiscal court was fixed by an order previous to his election, for the term of four years, and that the fiscal court had no authority to change that compensation during the present term of the appellant in his office. The appellant objected to this judgment and excepted, and prayed an appeal to this court, which was granted.

The compensation provided by law for the services of the clerk of the county court is the fees, which he is authorized by law to collect for the various services, which he is fixed by statute, and the amount to be alcalled upon to render, and which fees are

R. W. Keenon, of Harrodsburg, for appellant. Emmet Puryear, of Danville, for aplowed and paid to him for the services renpellee.

HURT, J. H. L. Gibbs, the appellee, was elected clerk of the Mercer county court, for the term beginning on the first Monday in January, 1914, and continuing for four years thereafter. Kentucky Statutes, § 1835, provides as follows:

"The clerk of the county court of each county shall, by virtue of his office, be clerk of the fiscal court. He shall attend its sessions and keep a full and complete record of all its proceedings, with a proper index. For his services the fiscal court shall annually make him a reasonable allowance, to be paid out of the county levy."

It is the duty of the county court clerk to act as the clerk of the fiscal court, just the same as it is his duty to perform any other services required of the county court clerk by the laws of the state.

Previous to the election of appellee, at a regular session of the fiscal court, a resolution was adopted fixing the salaries of the county judge, county attorney, school superintendent, and the county court clerk, as clerk of the fiscal court, for the term beginning on the first Monday in January, 1914.

dered by him as clerk of the fiscal court. All of it constitutes the compensation of his office. His term of office is four years. The duties which he may be called upon to render as clerk of the fiscal court may be greater and more onerous during one year of his term than another. The same may be said of the duties performed by the county judge, the county attorney, the county treasurer, and the superintendent of schools. Section 161 of the Constitution provides that the compensation of a county officer shall not be changed after his election or appointment or during his term of office, and section 235 of the Constitution provides that the salaries for public officers shall not be changed during the term for which they were elected. The reason for these constitutional restraints upon the power to change the compensation or salary of an officer after his election or during his term of office lies in the fact that if there was not such a restraint, it would induce a continuous campaign, upon the part of an officer and his adherents, to secure an increase in his compensation beyond a just and reasonable sum, by the exercise of the